Medical Treatment Planning and Decisions Act 2016

A document made under Victoria's Medical Treatment Planning and Decisions Act 2016 that sets out either or both a person’s binding instructions, or preferences and values, in relation to medical treatment, in the event they do not have decision-making capacity for that treatment.

A person appointed medical treatment decision maker under the Medical Treatment Planning and Decisions Act.

In addition, legal appointments made prior to the start of the Act are recognised. These are an:

• enduring power of attorney (medical treatment) made before 12 March 2018
• enduring power of attorney appointing an attorney for personal matters made between 1 September 2015 and 11 March 2018
• enduring power of guardianship appointing an enduring guardian with health care powers made before 1 September 2015.

Valid appointments made in other Australian states and territories are also recognised.

Under the Medical Treatment Planning and Decisions Act, a person has decision-making capacity to make a decision if the person is able to do the following:

• understand the information relevant to the decision and the effect of the decision
• retain that information to the extent necessary to make the decision
• use or weigh that information as part of the process of making the decision
• communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

A person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.

An adult is presumed to have decision-making capacity unless there is evidence to the contrary.

A person:

• has decision-making capacity to make a decision if it is possible for the person to make a decision with practicable and appropriate support
• may have decision-making capacity to make some decisions and not others.

If a person does not have decision-making capacity for a particular decision, it may be temporary and not permanent.

It should not be assumed that a person does not have decision-making capacity to make a decision:

• on the basis of the person's appearance
• because the person makes a decision that is, in the opinion of others, unwise.

A health practitioner needs to record on the patient’s clinical records the reasons they were satisfied the patient did not have decision-making capacity.

Decision-making capacity and recovery within a reasonable time

If the patient is likely to recover decision-making capacity for the medical treatment decision within a reasonable time, the health practitioner should wait for the patient to be able to make the decision, unless a further delay would result in a significant deterioration of the patient's condition.

Emergency treatment is medical treatment (other than electroconvulsive treatment), or a medical research procedure, that is necessary as a matter of urgency to:

• save the person’s life
• prevent serious damage to the person’s health or
• prevent the person from suffering or continuing to suffer significant pain or distress.

If a person does not have decision-making capacity to consent (or this is uncertain), a health practitioner may administer emergency treatment to a patient without consent.

However, emergency treatment must not proceed if the health practitioner is aware that the patient has refused the particular treatment in an instructional directive in an advance care directive, or there is a relevant refusal of medical treatment certificate made before 12 March 2018.

In an emergency, a health practitioner is not required to search for an advance care directive that is not readily available.

The Medical Treatment Planning and Decisions Act applies to all registered health practitioners in the following professions:

• medical
• dental
• physiotherapy
• occupational therapy
• chiropractic
• pharmacy
• optometry
• podiatry
• psychology
• nursing and midwifery
• medical radiation practice
• osteopathy
• Chinese medicine
• Aboriginal and Torres Strait Islander health practice.

In addition, the Act applies to the following, who are also health practitioners under the Act:

• paramedics
• non-emergency patient transport staff.

An instructional directive in an advance care directive made under the Medical Treatment Planning and Decisions Act is a legally binding statement in which the person who completes it consents to, or refuses, particular forms of medical treatment or a medical research procedure, or a course of treatment. It is directed to the person's health practitioners.

The consent or refusal may be given so as to apply in all circumstances, only in specified circumstances, or in all circumstances except specified circumstances.

Under the Medical Treatment Planning and Decisions Act, this means:

• a registered medical practitioner
• someone who is a dentist (other than a student) or is in the dentist division of this profession, and is registered with the Australian Health Practitioner Regulation Agency.

A procedure carried out for the purposes of medical research, including as part of a clinical trial, the administration of prescription pharmaceuticals, the use of equipment or a device, or a prescribed medical research procedure.

Any of the following treatments of a person by a health practitioner for the purposes of diagnosing a physical or mental condition, preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life:

• treatment with physical or surgical therapy
• treatment for mental illness
• treatment with prescription pharmaceuticals
• dental treatment
• palliative care.

A decision to consent to, or refuse, the commencement or continuation of, treatment.

A person authorised under the Medical Treatment Planning and Decisions Act to make a medical treatment decision on behalf of another person who does not have decision-making capacity to make that decision.

The medical treatment decision maker for a person is the first person, 18 years of age or older, in the list below. They must be reasonably available and willing and able to make the decision. Where there are two or more relatives who are first on this list, the eldest is the medical treatment decision maker.

1. The person's appointed medical treatment decision maker

2. A guardian appointed by the Victorian Civil and Administrative Tribunal to make decisions about medical treatment for the person

3. The first of the following people who is in a close and continuing relationship with the person:

1. the person's spouse or domestic partner

2. the person's primary carer (see definition of primary carer above)

3. an adult child of the person

4. a parent of the person

5. an adult sibling of the person.

Note: Appointments made before the Medical Treatment Planning and Decisions Act commenced on 12 March 2018 are valid.

Palliative care includes the following:

• the provision of reasonable medical treatment for the relief of pain, suffering and discomfort
• the reasonable provision of food and water.

A health practitioner is able to administer palliative care to a patient who does not have decision-making capacity for that care, despite any decision of their medical treatment decision maker (or any statement in an advance care directive). However, the health practitioner must have regard to the patient’s expressed preferences and values and must consult with their medical treatment decision maker, if any.

An adult who is in a 'care relationship' with the person and has principal responsibility for the person's care. 

A person is in care relationship with another person if they provide care because the other person:

• has a disability
• is older
• has a mental illness
• has an ongoing medical condition (including a terminal or chronic illness or dementia).

A person is not in a care relationship with another person merely because they are the parent, adult child or other relative of the other person, or live with the other person.

A person is not in a care relationship for the purposes of this Act if he or she provides care to another person:

• under a contract of service or a contract for the provision of services
• under an employment contract
• in the course of doing voluntary work for a community organisation
• as part of the requirements of an education course or training.

A person may be in a care relationship even if the person receives funding from either the Commonwealth or State Government in relation to carrying out the role of a carer.

Note: A person who is cared for in a health facility at which the person is cared for by another person is not, by reason only of that fact, regarded as being in the care of that other person and remains in the care relationship that the person was in immediately before being cared for in that health facility.

Any medical treatment other than significant treatment under the Act (see below for significant treatment).

A health practitioner can administer routine treatment without consent if the patient does not have decision-making capacity to make the medical treatment decision, and there is no relevant instructional directive (in an advance care directive) or medical treatment decision maker for the patient.

If they do so, the health practitioner must set out in the patient’s clinical records the details of:

• the health practitioner’s attempts to locate an advance care directive and a medical treatment decision maker
• the exact nature of the routine treatment and the reason for the decision to administer it.

Significant treatment is medical treatment that involves any of the following:

• a significant degree of bodily intrusion
• a significant risk to the person
• significant side effects
• significant distress to the person.

The Department of Health and Human Services has developed significant treatment clinical guidelines.

A special medical procedure is:

• any procedure that is intended, or is reasonably likely, to have the effect of rendering the patient permanently infertile
• termination of pregnancy or
• any removal of tissue for the purposes of transplantation to another person.

Only VCAT can consent to a special medical procedure for a patient who does not have decision-making capacity for the decision.

A person appointed under the Medical Treatment Planning and Decisions to support the person who appointed them to make, communicate and give effect to their medical treatment decisions, and to represent their interests in respect of their medical treatment.

A values directive in an advance care directive made under the Medical Treatment Planning and Decisions Act, is a statement of a person's values and preferences for their medical treatment. The person's medical treatment decision maker is guided by the values directive when they make decisions for the person.